&EPA
United States Office of Brownfields EPA-5 60-F12-190
Environmental Protection and Land Revitalization November 2012
Agency (51501)
Funding Guidance for State and Tribal Response Programs
Fiscal Year 2013
Section 128(a) of the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), as amended, authorizes a noncompetitive $50 million grant program to establish and
enhance state1 and tribal2 response programs. CERCLA 128(a) response program grants are
funded with categorical3 State and Tribal Assistance Grant (STAG) appropriations. Section
128(a) cooperative agreements are awarded and administered by the U.S. Environmental
Protection Agency (EPA) regional offices. Generally, these response programs address the
assessment, cleanup, and redevelopment of brownfields sites and other sites with actual or
perceived contamination. This document provides guidance that will enable states and tribes to
apply for and use Fiscal Year 2013 section 128(a) funds4.
The Catalogue of Federal Domestic Assistance entry for the section 128(a) State and Tribal
Response Program cooperative agreements is 66.817. This grant program is eligible to be
included in state and tribal Performance Partnership Grants under 40 CFR Part 35 Subparts A
and B, with the exception of funds used to capitalize a revolving loan fund for brownfield
remediation under section 104(k)(3); or purchase insurance or develop a risk sharing pool, an
indemnity pool, or insurance mechanism to provide financing for response actions under a State
or Tribal response program.
Requests for funding will be accepted from December 1, 2012 through January 31, 2013.
Requests EPA receives after January 31, 2013 will not be considered for FY2013 funding.
Information that must be submitted with the funding request is listed in Section VIII of this
guidance. States or tribes that do not submit the request in the appropriate manner may forfeit
their ability to receive funds. First time requestors are strongly encouraged to contact their
Regional EPA Brownfields contacts, listed on the last page of this guidance, prior to submitting
their funding request.
Requests submitted by the January 31, 2013 request deadline are preliminary; final cooperative
agreement work plans and budgets will be negotiated with the regional offices once final funding
allocation determinations are made. As in previous years, EPA will place special emphasis on
reviewing a cooperative agreement recipient's use of prior section 128(a) funding in making
allocation decisions and unexpended balances are subject to 40 CFR 35.118 and 40 CFR35.518
to the extent consistent with this guidance
States and tribes requesting funds are required to provide a Dun and Bradstreet Data Universal
Numbering System (DUNS) number with their cooperative agreement's final package. For more
information, please go to www.grants.gov.
The term "state" is defined in this document as defined in CERCLA section 101(27)
2The term "Indian tribe" is defined in this document as it is defined in CERCLA section 101(36). Intertribal consortia, as defined
in the Federal Register Notice at 67 FR 67181, Nov. 4,2002, are also eligible for funding under CERCLA section 128(a).
3Categorical grants are issued by the U.S. Congress to fund state and local governments for narrowly defined purposes.
4 The Agency may waive any provision of this guidance that is not required by statute, regulation, Executive Order or overriding
Agency policies.
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Table of Contents
I. BACKGROUND 3
II. ELIGIBILITY FOR FUNDING 3
III. MATCHING FUNDS/COST-SHARE 3
IV. THE FOUR ELEMENTS - SECTION 128(a) 3
V. PUBLIC RECORD REQUIREMENT 5
A. Distinguishing the "survey and inventory" element from the "public record" 6
B. Making the public record easily accessible 6
C. Long-term maintenance of the public record 6
VI. USE OF FUNDING 7
A. Overview 7
B. Uses related to "establishing" a state or tribal response program 8
C. Uses related to "enhancing" a state or tribal response program 8
D. Uses related to site-specific activities 8
E. Uses related to activities at "non-brownfields" sites 11
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT FUNDING REQUESTS 11
A. One application per state or tribe 11
B. Define the state or tribal response program 12
C. Separate cooperative agreements for the capitalization ofRLFs using Section 128(a) funds 12
D. Authority to manage a revolving loan fund program 12
E. Section 128(a) cooperative agreements can be part of a Performance Partnership Grant (PPG) 12
F. Project period 12
G. Demonstrating the four elements 13
H. Establishing and maintaining the public record 13
/. Demonstration of significant utilization of prior years'funding 13
J. Optional: Explanation of overall program impacts of possible funding reductions 14
K. Allocation system and process for distribution of funds 14
VIM. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST 16
A. Demonstration of significant utilization of prior years' funding 16
B. Summary of planned use of FY13 funding 16
IX. TERMS AND REPORTING 18
A. Progress reports 19
B. Reporting of program activity levels 21
C. Reporting of public record 22
D. Award administration information 23
REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS 25
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I. BACKGROUND
State and tribal response programs oversee assessment and cleanup activities at the majority of
brownfields sites across the country. The depth and breadth of state and tribal response programs
vary. Some focus on CERCLA related activities, while others are multi -faceted, for example,
addressing sites regulated by both CERCLA and the Resource Conservation and Recovery Act
(RCRA). Many state programs also offer accompanying financial incentive programs to spur
cleanup and redevelopment. In enacting CERCLA section 128(a)5 Congress recognized the
accomplishments of state and tribal response programs in cleaning up and redeveloping
brownfields sites. Section 128(a) also provides EPA with an opportunity to strengthen its
partnership with states and tribes.
This funding is intended for those states and tribes with overall management and administrative
capacity within their government required to administer a federal grant. The primary goal of this
funding is to ensure that state and tribal response programs include, or are taking reasonable
steps to include, certain elements of an environmental response program and that the response
program establishes and maintains a public record of sites addressed.
Subject to the availability of funds, EPA regional personnel will be available to provide technical
assistance to states and tribes as they apply for and carry out section 128(a) cooperative
agreements.
II. ELIGIBILITY FOR FUNDING
To be eligible for funding under CERCLA section 128(a), a state or tribe must:
1 . demonstrate that its response program includes, or is taking reasonable
steps to include, the four elements of a response program, described in
Section IV of this guidance; or be a party to voluntary response program
Memorandum of Agreement (VRP MO A) with EPA;
AND
2. maintain and make available to the public a record of sites at which
response actions have been completed in the previous year and are
planned to be addressed in the upcoming year, see CERCLA section
III. MATCHING FUNDS/COST-SHARE
States and tribes are not required to provide matching funds for cooperative agreements awarded
under section 128(a), with the exception of the section 128(a) funds a state or tribe uses to
capitalize a Brownfields Revolving Loan Fund under CERCLA section 104(k)(3).
IV. THE FOUR ELEMENTS - SECTION 128(a)
Section 128(a) recipients that do not have a VRP MO A with EPA must demonstrate that their
response program includes, or is taking reasonable steps to include, the four elements.
Section 128(a) was added to CERCLA in 2002 by the Small Business Liability Relief and Brownfields Revitalization Act
(Brownfield Amendments).
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Achievement of the four elements should be viewed as a priority. Section 128(a) authorizes
funding for activities necessary to establish and enhance the four elements and to establish and
maintain the public record requirement.
The four elements of a response program are described below:
1. Timely survey and inventory ofbrownfields sites in state or tribal land. EPA's goal in
funding activities under this element is to enable the state or tribe to establish or enhance
a system or process that will provide a reasonable estimate of the number, likely
locations, and the general characteristics ofbrownfields sites in their state or tribal lands.
EPA recognizes the varied scope of state and tribal response programs and will not
require states and tribes to develop a "list" ofbrownfields sites. However, at a minimum,
the state or tribe should develop and/or maintain a system or process that can provide a
reasonable estimate of the number, likely location, and general characteristics of
brownfields sites within their state or tribal lands. Inventories should evolve to a
prioritization of sites based on community needs, planning priorities, and protection of
human health and the environment. Particular attention should focus on those
communities with limited capacity to compete for, and manage a competitive brownfield
assessment, revolving loan, and cleanup grant.
Given funding limitations, EPA will negotiate work plans with states and tribes to
achieve this goal efficiently and effectively and within a realistic time frame. For
example, many of EPA's Brownfields Assessment cooperative agreement recipients
conduct inventories ofbrownfields sites in their communities or jurisdictions. EPA
encourages states and tribes to work with these cooperative agreement recipients to
obtain the information that they have gathered and include it in their survey and
inventory.
2. Oversight and enforcement authorities or other mechanisms and resources. EPA's goal
in funding activities under this element is to have state and tribal response programs that
include oversight and enforcement authorities or other mechanisms, and resources that
are adequate to ensure that:
a. a response action will protect human health and the environment and be
conducted in accordance with applicable laws; and
b. the state or tribe will complete the necessary response activities if the person
conducting the response activities fails to complete the necessary response
activities (this includes operation and maintenance and/or long-term monitoring
activities).
3. Mechanisms and resources to provide meaningful opportunities for public participation.6
EPA's goal in funding activities under this element is to have states and tribes include in
their response program mechanisms and resources for meaningful public participation, at
the local level, including, at a minimum:
6States and tribes establishing this element may find useful information on public participation on the EPA's community
involvement web site at http://www.epa.gov/superfund/communitv/policies.htm
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a. public access to documents and related materials that a state, tribe, or party
conducting the cleanup is relying on or developing in making cleanup
decisions or conducting site activities;
b. prior notice and opportunity for meaningful public comment on cleanup
plans and site activities including input into the prioritization of sites; and
c. a mechanism by which a person who is, or may be, affected by a release or
threatened release of a hazardous substance, pollutant, or contaminant at a
brownfields site — located in the community in which the person works or
resides — may request that a site assessment be conducted. The
appropriate state or tribal official must consider this request and
appropriately respond.
4. Mechanisms for approval of a cleanup plan and verification and certification that
cleanup is complete. EPA's goal in funding activities under this element is to have states
and tribes include in their response program mechanisms to approve cleanup plans and to
verify that response actions are complete, including a requirement for certification or
similar documentation from the state, the tribe, or a licensed site professional that the
response action is complete. Written approval by a state or tribal response program
official of a proposed cleanup plan is an example of an approval mechanism.
V. PUBLIC RECORD REQUIREMENT
In order to be eligible for section 128(a) funding, states and tribes (including those with MO As)
must establish and maintain a public record system, described below, in order to receive funds.
The public record should be made available to the public in an effort to provide a mechanism for
meaningful public participation (refer to Section IV 3 above). Under section 128(b)(l)(C), states
and tribes must:
1. maintain and update, at least annually or more often as appropriate, a record of sites that
includes the name and location of sites at which response actions have been completed
during the previous year;
2. maintain and update, at least annually or more often as appropriate, a record of sites that
includes the name and location of sites at which response actions are planned to be
addressed in the next year;
3. identify in the public record whether or not the site, upon completion of the response
action, will be suitable for unrestricted use. If not, the public record must identify the
institutional controls relied on in the remedy and include relevant information concerning
the entity that will be responsible for oversight, monitoring, and/or maintenance of the
institutional and engineering controls; and how the responsible entity is implementing
those activities (see Section V.C).
Section 128(a) funds may be used to maintain and make available a public record system that
meets the requirements discussed above.
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A. Distinguishing the "survey and inventory" element from the "public
record"
It is important to note that the public record requirement differs from the "timely survey
and inventory" element described in the "Four Elements" section above. The public
record addresses sites at which response actions have been completed in the previous
year and are planned to be addressed in the upcoming year. In contrast, the "timely
survey and inventory" element, described above, refers to identifying brownfields sites
regardless of planned or completed actions there.
B. Making the public record easily accessible
EPA's goal is to enable states and tribes to make the public record and other information,
such as information from the "survey and inventory" element, easily accessible. For this
reason, EPA will allow states and tribes to use section 128(a) funding to make the public
record, as well as other information, such as information from the "survey and inventory"
element, available to the public via the internet or other means. For example, the Agency
would support funding state and tribal efforts to include detailed location information in
the public record such as the street address and latitude and longitude information for
each site.7 States and tribes should ensure that all affected communities have appropriate
access to the public record including making it available on-line, in print at libraries, or
other community gathering places.
In an effort to reduce cooperative agreement reporting requirements and increase public
access to the public record, EPA encourages states and tribes to place their public record
on the internet. If a state or tribe places the public record on the internet, maintains the
substantive requirements of the public record, and provides EPA with the link to that site,
EPA will, for purposes of cooperative agreement funding only, deem the public record
reporting requirement met.
C. Long-term maintenance of the public record
EPA encourages states and tribes to maintain public record information, including data
on institutional controls, on a long term basis (more than one year) for sites at which a
response action has been completed. Subject to EPA regional office approval, states or
tribes may include development and operation of systems that ensure long term
maintenance of the public record, including information on institutional controls (such as
ensuring the entity responsible for oversight, monitoring, and/or maintenance of the
institutional and engineering controls is implementing those activities) in their work
plans.8
For further information on latitude and longitude information, please see the EPA's data standards web site available at
http://iaspub.epa.gov/sor_internet/registrv/datastds/findadatastandard/epaapproved/latitudelongitude
8States and tribes may find useful information on institutional controls on the EPA's institutional controls web site at
http: //www. epa. go v/superfund/polic y/ic/index. htm
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VI. USE OF FUNDING
A Overview
Section 128(a)(l)(B) describes the eligible uses of cooperative agreement funds by states
and tribes. In general, a state or tribe may use a cooperative agreement to "establish or
enhance" their response programs, including elements of the response program that
include activities related to responses at brownfields sites with petroleum contamination.
Eligible activities include, but are not limited to, the following:
• developing legislation, regulations, procedures, ordinances, guidance, etc. that
establish or enhance the administrative and legal structure of their response programs;
• establishing and maintaining the required public record described in Section V of
this guidance;
• operation, maintenance and long-term monitoring of institutional controls and
engineering controls;
• conducting site-specific activities, such as assessment or cleanup, provided such
activities establish and/or enhance the response program and are tied to the four
elements. In addition to the requirement under CERCLA section 128(a)(2)(C)(ii) to
provide for public comment on cleanup plans and site activities, EPA strongly
encourages states and tribes to seek public input regarding the priority of sites to be
addressed and solicit input from local communities, especially potential
environmental justice communities, communities with a health risk related to
exposure to hazardous waste or other public health concerns, economically
disadvantaged or remote areas, and communities with limited experience working
with government agencies. EPA will not provide section 128(a) funds solely for
assessment or cleanup of specific brownfields sites; site-specific activities must be
part of an overall section 128(a) work plan that includes funding for other activities
that establish or enhance the four elements;
• capitalizing a revolving loan fund (RLF) for brownfields cleanup under CERCLA
section 104(k)(3). These RLFs are subject to the same statutory requirements and
cooperative agreement terms and conditions applicable to RLFs awarded under
section 104(k)(3). Requirements include a 20 percent match (can be in the form of a
contribution of money, labor, material, or services from a non-federal source) on the
amount of section 128(a) funds used for the RLF, a prohibition on using EPA
cooperative agreement funds for administrative costs relating to the RLF, and a
prohibition on using RLF loans or subgrants for response costs at a site for which the
recipient may be potentially liable under section 107 of CERCLA. Other prohibitions
contained in CERCLA section 104(k)(4) also apply; and
• purchasing environmental insurance or developing a risk-sharing pool, indemnity
pool, or insurance mechanism to provide financing for response actions under a state
or tribal response program.
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B. Uses related to "establishing" a state or tribal response program
Under CERCLA section 128(a), "establish" includes activities necessary to build the
foundation for the four elements of a state or tribal response program and the public
record requirement. For example, a state or tribal response program may use section
128(a) funds to develop regulations, ordinances, procedures, and/or guidance. For more
developed state or tribal response programs, "establish" may also include activities that
keep their program at a level that meets the four elements and maintains a public record
required as a condition of funding under CERCLA section 128(b)(l)(C).
C. Uses related to "enhancing" a state or tribal response program
Under CERCLA section 128(a), "enhance" is related to activities that add to or improve a
state or tribal response program or increase the number of sites at which response actions
are conducted under a state or tribal response program.
The exact "enhancement" uses that may be allowable depend upon the work plan
negotiated between the EPA regional office and the state or tribe. For example, regional
offices and states or tribes may agree that section 128(a) funds may be used for outreach
and training directly related to increasing awareness of its response program, and
improving the skills of program staff. It may also include developing better coordination
and understanding of other state or tribal programs, e.g., programs that address RCRA or
underground storage tanks (USTs), etc. As another example, states and tribal response
programs enhancement activities can include outreach to local communities to increase
their awareness and knowledge regarding the importance of monitoring engineering and
institutional controls. Other "enhancement" uses may be allowable as well.
D. Uses related to site-specific activities
1. Uses for site-specific activities
States and tribes may use section 128(a) funds for site-specific activities
that improve state or tribal capacity. The amount grantees may request for
site-specific assessments and cleanups may not exceed 50% of the total
amount of funding. A grantee may request a waiver to exceed the 50% of
annual funding for site specific activities. In order for EPA to consider the
waiver, the total amount of the request may not exceed the grantee's prior
year's funding level. The funding request must include a brief
justification describing the reason(s) for spending more than 50% of an
annual allocation on site-specific activities.
An applicant when requesting a waiver must include the following
information in the written justification:
• total amount requested for eligible brownfield site-specific activities;
• percentage of the eligible brownfield site-specific activities (assuming
waiver is approved) in the total budget;
• site specific activities that will be covered by this funding. If known,
provide site specific information and describe the development or
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enhancement of your state/tribal site specific program. Further explain
how the community will be (or has been) involved in prioritization of site
work and especially those sites where there is a potential or known
significant environmental impact to the community;
• please explain how this shift in funding will not negatively impact the
core programmatic capacity (i.e., the ability to establish/enhance four
elements of a response program) and how related activities will be
maintained in spite of an increase in site-specific work. Grantees must
demonstrate that they have adequate funding from other sources to
effectively carry out work on the four elements for EPA to grant a waiver
of the 50% limit on using 128(a) funds for site-specific activities;
• describe how this shift in funding towards site-specific work is more
appropriate for your response program rather than a request for an
increase in overall funding;
• please explain whether the sites to be addressed are those for which the
affected community(ies) has requested work be conducted (refer to
Section VIA Overview of Funding for more information).
EPA Headquarters will base approval of waivers on the information that
is included in the justification along with the request for funding, as well
as other information available to the Agency. EPA's Regional
Brownfield Coordinators will inform grantees of the Agency's final
decision(s).
2. Uses related to site-specific assessment and cleanup activities
Site-specific assessment and cleanup activities should establish and/or
enhance the response program and be tied to the four elements. Site-
specific assessments and cleanups must comply with all applicable laws
and are subject to the following restrictions:
a. section 128(a) funds can only be used for assessments or
cleanups at sites that meet the definition of a brownfields
site at CERCLA section 101(39). EPA encourages states
and tribes to use site-specific funding to perform
assessment (e.g. phase II and phase III assessments) and
cleanup activities that will lead more quickly to the reuse of
sites. Furthermore, states and tribes that perform site-
specific activities should plan to engage the targeted
community in the project. For example, Community
Relations Plans (CRP) could be developed to address
reasonable notice to the public concerning the cleanup, and
provide opportunities for the public to comment on the
cleanup. States and tribes should work towards securing
additional funding for site-specific activities by leveraging
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resources from other sources such as businesses, non-profit
organizations, education and training providers, and/or
federal, state, tribal, and local governments.
b. absent EPA approval, no more than $200,000 per site
assessment can be funded with section 128(a) funds, and no
more than $200,000 per site cleanup can be funded with
section 128(a) funds;
c. absent EPA approval, the state/tribe may not use funds
awarded under this agreement to assess and clean up sites
owned or operated by the recipient; and
d. assessments and cleanups cannot be conducted at sites
where the state/tribe is a potentially responsible party
pursuant to CERCLA section 107, except:
• at brownfields sites contaminated by a controlled
substance as defined in CERCLA section
101(39yD)(n)(T): or
• when the recipient would satisfy all of the elements
set forth in CERCLA section 101(40) to qualify as a
bona fide prospective purchaser except that the date
of acquisition of the property was on or before
January 11.2002.
Subgrants cannot be provided to entities that may be potentially
responsible parties (pursuant to CERCLA section 107) at the site for
which the assessment or cleanup activities are proposed to be conducted,
except:
1. at brownfields sites contaminated by a controlled substance
as defined in CERCLA section 101(39)(D)(ii)(I): or
2. when the recipient would satisfy all of the elements set
forth in CERCLA section 101(40) to qualify as a bona fide
prospective purchaser except that the date of acquisition of
the property was on or before January 11, 2002.
3. Uses related to site-specific activities at petroleum brownfields sites
States and tribes may use section 128(a) funds for activities that establish
and enhance their response programs including addressing petroleum
brownfield sites. Specifically, the costs of site-specific activities, such as
site assessments or cleanup at petroleum contaminated brownfields sites,
defined at CERCLA section 101(39)(D)(ii)(II), are eligible and are
allowable if the activity is included in the work plan negotiated between
the EPA regional office and the state or tribe. Section 128(a) funds used
to capitalize a Brownfields RLF may be used at brownfields sites
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contaminated by petroleum to the extent allowed under CERCLA section
104(k)(3).
4. Other Eligible Uses of Funding
Other eligible uses of funds for site-specific related work include, but are
not limited to, the following activities:
• technical assistance to federal brownfields cooperative agreement
recipients;
• development and/or review of quality assurance project plans
(QAPPs); and
• entering data into the ACRES database
E. Uses related to activities at "non-brownfields" sites
Costs incurred for activities at non-brownfields sites, e.g., oversight, may be eligible
and allowable if such activities are included in the state's or tribe's work plan. These
costs need not be incurred in connection with a brownfields site to be eligible, but
must be authorized under the state's or tribe's work plan to be allowable. Other uses
may be eligible and allowable as well, depending upon the work plan negotiated
between the EPA regional office and the state or tribe. However, assessment and
cleanup activities may only be conducted on eligible brownfields sites, as defined in
CERCLA section 101(39).
VII. GENERAL PROGRAMMATIC GUIDELINES FOR SECTION 128(a) GRANT
FUNDING REQUESTS
Funding authorized under CERCLA section 128(a) is awarded through a cooperative agreement9
between EPA and a state or a tribe. The program is administered under the general EPA grant
and cooperative agreement regulations for states, tribes, and local governments found in the
Code of Federal Regulations at 40 CFR Part 31 as well as applicable provisions of 40 CFR Part
35 Subparts A and B. Under these regulations, the cooperative agreement recipient for section
128(a) grant program is the government to which a cooperative agreement is awarded and which
is accountable for the use of the funds provided. The cooperative agreement recipient is the
entire legal entity even if only a particular component of the entity is designated in the
cooperative agreement award document. Further, unexpended balances of cooperative
agreement funds are subject to 40 CFR 35.118 and 40 CFR 35.518 to the extent consistent with
this guidance. EPA allocates funds to state and tribal response programs under 40 CFR 35.420
and 40 CFR 35.737
A. One application per state or tribe
Subject to the availability of funds, EPA regional offices will negotiate and enter into
9A cooperative agreement is an agreement to a state/tribe that includes substantial involvement by the EPA on activities described
in the work plan which may include technical assistance, collaboration on program priorities, etc.
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section 128(a) cooperative agreements with eligible and interested states or tribes. EPA
will accept only one application from each eligible state or tribe.
B. Define the state or tribal response program
States and tribes must define in their work plan the "section 128(a) response program(s)"
to which the funds will be applied, and may designate a component of the state or tribe
that will be EPA's primary point of contact for negotiations on their proposed work plan.
When EPA funds the section 128(a) cooperative agreement, states and tribes may
distribute these funds among the appropriate state and tribal agencies that are part of the
section 128(a) response program. This distribution must be clearly outlined in their
annual work plan.
C. Separate cooperative agreements for the capitalization ofRLFs using
Section 128fa) funds
If a portion of the section 128(a) grant funds requested will be used to capitalize a
revolving loan fund for cleanup, pursuant to section 104(k)(3), two separate cooperative
agreements must be awarded, i.e., one for the RLF and one for non-RLF uses. States and
tribes may, however, submit one initial request for funding, delineating the RLF as a
proposed use. Section 128(a) funds used to capitalize an RLF are not eligible for
inclusion into a Performance Partnership Grant (PPG).
D. Authority to manage a revolving loan fund program
If a state or tribe chooses to use its section 128(a) funds to capitalize a revolving loan
fund program, the state or tribe must have the authority to manage the program, e.g.,
issue loans. If the agency/department listed as the point of contact for the section 128(a)
cooperative agreement does not have this authority, it must be able to demonstrate that
another state or tribal agency does have the authority to manage the RLF and is willing to
do so.
E. Section 128(a) cooperative agreements can be part of a Performance
Partnership Grant (PPG1
States and tribes may include section 128(a) cooperative agreements in their PPG 69 Fed.
Reg. 51,756 (2004). Section 128(a) funds used to capitalize an RLF or purchase
insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to
provide financing for response actions under a state or tribal response program are not
eligible for inclusion in the PPG.
F. Project period
EPA regional offices will determine the project period for each cooperative agreement.
These may be for multiple years depending on the regional office's cooperative
agreement policies. Each cooperative agreement must have an annual budget period tied
to an annual work plan. Pre-award costs are subject to 40 CFR 35.113 and 40 CFR
35.513.
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G. Demonstrating the four elements
As part of the annual work plan negotiation process, states or tribes that do not have VRP
MO As must demonstrate that their program includes, or is taking reasonable steps to
include, the four elements described in Section IV. EPA will not fund, in future years,
state or tribal response program annual work plans if EPA determines that these
requirements are not met or reasonable progress is not being made. EPA may base this
determination on the information the state or tribe provides to support its work plan, or on
EPA's review of the state or tribal response program.
H. Establishing and maintaining the public record
Prior to funding a state's or tribe's annual work plan, EPA regional offices will verify and
document that a public record, as described in Section V and below, exists and is being
maintained.10 Specifically for:
• states or tribes that received initial funding prior to FY12: Requests for FY13 funds
will not be accepted from states or tribes that fail to demonstrate, by the January 31,
2013 request deadline, that they established and are maintaining a public record.
(Note, this would potentially impact any state or tribe that had a term and condition
placed on their FY12 cooperative agreement that prohibited drawdown of FY12 funds
prior to meeting public record requirement). States or tribes in this situation will not
be prevented from drawing down their prior year funds once the public record
requirement is met; and
• states or tribes that received initial funding in FY12: By the time of the actual FY13
award, the state or tribe must demonstrate that they established and maintained the
public record (those states and tribes that do not meet this requirement will have a
term and condition placed on their FY13 cooperative agreement that prevents the
drawdown of FY13funds until the public record requirement is met).
/. Demonstration of significant utilization of prior years'funding
States and tribes should be aware that EPA and its Congressional appropriations
committees place significant emphasis on the utilization of prior years' funding. Unused
funds from prior years will be considered in the allocation process. Existing balances of
cooperative agreement funds as reflected in EPA's Financial Data Warehouse could
support an allocation amount below a grantee's request for funding or, if appropriate
deobligation and reallocation by EPA Regions as provided for in 40 CFR 35.118 and 40
CFR 35.518 . Grantees should include a detailed explanation and justification of funds
that remain in EPA's Financial Data Warehouse from prior years (that are related to
response program activities or brownfield related activities).
EPA Regional staff will review EPA's Financial Database Warehouse to identify the
amount of remaining prior year(s) funds. The cooperative agreement recipient should
work, as early as possible, with both their own finance department, and with their
10 For purposes of cooperative agreement funding, the state's or tribe's public record applies to that state's or tribe's
response program(s) that utilized the section 128(a) funding.
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Regional Project Officer to reconcile any discrepancy between the amount of unspent
funds showing in EPA's system, and the amount reflected in the recipient's records. The
recipient should obtain concurrence from the Region on the amount of unspent funds
requiring justification by the deadline for this request for funding.
/. Optional: Explanation of overall program impacts of possible funding
reductions
Please explain the programmatic effects of a reduction (to your current funding amount)
on significant activities of your response program. Specifically, at what amount (e.g.,
percentage of your current funding level) would your response program experience core
programmatic impacts such as a reduction in staff, a decrease in oversight activities, or
other impacts to the environment and health of the communities the program serves, etc.?
An EPA Region may require that this information be submitted as part of the request for
funding in order to fully understand the individual program impacts associated with
decreased funding. These impacts will be considered as part of the decision for the final
allocation.
K. Allocation system and process for distribution of funds
EPA regional offices will work with interested states and tribes to develop their
preliminary work plans and funding requests. Final cooperative agreement work plans
and budgets will be negotiated with the regional office once final allocation
determinations are made. Please refer to process flow chart below (dates are estimates
and subject to change):
Dec-Jan
Feb-April
Grantee
coordinates with
EPA Regional
Brownfields
Office to develop
funding requests
May
May-July
Regional
Brownfields
Offices inform
grantee of
funding
amount
r— N
1 — i/
Grantee works
with Regional
Brownfields
Office to finalize
workplans,
budgets, in order
to complete and
submit the grant
application
For Fiscal Year 2013, EPA will consider funding requests up to a maximum of $1.1
million per state or tribe. Please note the CERCLA 128(a) annual program's budget has
remained static while demand for funding continues to increase every year11. Therefore,
it is likely that the FY13 state and tribal individual funding amounts will be less than the
FY12 individual funding amounts.
After the January 31, 2013 request deadline, EPA's regional offices will submit
11 FY12 the EPA received $57.4 Million in requests for funding from States and Tribes under CERCLA 128(a). The FY12
enacted budget was $49.3 Million. The resulting budget shortfall was approximately $8.1 Million.
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summaries of state and tribal requests to EPA Headquarters. Before submitting requests
to EPA Headquarters, regional offices may take into account additional factors when
determining recommended allocation amounts. Such factors include, but are not limited
to, the depth and breadth of the state or tribal program; scope of the perceived need for
the funding, e.g., size of state or tribal jurisdiction or the proposed work plan balanced
against capacity of the program, amount of current year funding, funds remaining from
prior years, etc.
After receipt of the regional recommendations, EPA Headquarters will consolidate
requests and allocate funds accordingly.
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VIII. INFORMATION TO BE SUBMITTED WITH THE FUNDING REQUEST
A. Demonstration of significant utilization of prior years' funding
States and tribes requesting section 128(a) FY13 funds must submit the following
information, as applicable, to their regional brownfield contact on or before January 31,
2013. When submitting a request for FY13funds, include a detailed explanation and
justification of funds that remain in EPA's financial Data Warehouse from prior years
(that are related to response program activities or brownfield related activities).
For those states and tribes that received section 128(a) funds, you must provide the
amount of prior years' funding including funds that recipients have not received in
payments (i.e., funds EPA has obligated for grants that remain in EPA's Financial Data
Warehouse). EPA will take into account these funds in the allocation process when
determining the recipient's programmatic needs under 40 CFR 35.420 and 40 CFR
35.737.
B. Summary of planned use of FY13 funding
All states and tribes requesting FY13 funds must submit a summary of the planned use of
the funds with associated dollar amounts. Please provide the request in the chart below.
The amount of funding requested should be an amount that can be reasonably spent in
one year. It is likely that the FY13 state and tribal individual funding amounts will be less
than the FY12 individual funding amounts. The requestor should work, as early as
possible, with their EPA Regional Program contact to ensure that the funding amount
requested and related activities are reasonable.
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Funding Use
Establish or enhance the four elements:
1. Timely survey and inventory of
brownfields sites;
2. Oversight and enforcement
authorities or other
mechanisms;
3. Mechanisms and resources to
provide meaningful
opportunities for public
participation;
4. Mechanisms or approval of a
cleanup plan and verification
and certification that cleanup is
complete.
Establish and maintain the public
record
FY12
Awarded
$xx,xxx
$xx,xxx
FY13Requested
$xx,xxx
$xx,xxx
Summary of Intended Use (EXAMPLE USES)
1. Examples:
• inventory and prioritize brownfields
sites
• institutional control (IC)/engineering
control (EC) tracking
2. Examples:
• develop/enhance ordinances,
regulations, procedures for response
programs
3. Examples:
• develop a community involvement
process
• fund an outreach coordinator
• issue public notices of site activities
• develop a process to seek public input
from local communities, especially
potential environmental justice
communities, communities with a health
risk related to exposure to hazardous
waste or other public health concerns,
economically disadvantaged or remote
areas, and communities with limited
experience working with government
agencies to prioritize sites to be
addressed
4. Examples:
• review cleanup plans and verify
completed actions
• maintain public record
• create web site for public record
• disseminate public information on how
to access the public record
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Funding Use
Enhance the response program
Site-specific activities
(amount requested should be incidental
to the workplan, see Section VI. D for
more information on what activities
should be considered when calculating
site specific activities)
Environmental insurance
Revolving loan fund
Total funding
FY12
Awarded
$xx,xxx
$xx,xxx
$xx,xxx
$xx,xxx
$xxx,xxx
FY13Requested
$xx,xxx
$xx,xxx
$xx,xxx
$xx,xxx
$xxx,xxx
Summary of Intended Use (EXAMPLE USES)
• provide oversight of site assessments
and cleanups
• attend training and conferences on
brownfields cleanup technologies &
other brownfields topics
• update and enhance program
management activities
• negotiate/oversee contracts for response
programs
• enhance program management &
tracking systems
• perform site assessments and cleanups
• develop QAPPs
• prepare Property Profile Forms/input
data into ACRES database for these
sites
• review potential uses of environmental
insurance
• manage an insurance risk pool
• create a cleanup revolving loan fund
Performance Partnership Grant? Yes D No D
IX. TERMS AND REPORTING
Cooperative agreements for state and tribal response programs will include programmatic and
administrative terms and conditions. These terms and conditions will describe EPA's substantial
involvement including technical assistance and collaboration on program development and site-
specific activities. Each of the subsections below summarizes the basic terms and conditions and
related reporting that will be required if a cooperative agreement with EPA is awarded.
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A. Progress reports
In accordance with 40 CFR 31.40, states and tribes must provide progress reports as
provided in the terms and conditions of the cooperative agreement negotiated with EPA
regional offices. State and tribal costs for complying with reporting requirements are an
eligible expense under the section 128(a) cooperative agreement. At a minimum, state or
tribal progress reports must include both a narrative discussion and performance data
relating to the state's or tribe's accomplishments and environmental outputs associated
with the approved budget and workplan and should provide an accounting of section
128(a) funding. If applicable, the state or tribe must include information on activities
related to establishing or enhancing the four elements of the state's or tribe's response
program. All recipients must provide information relating to establishing or, if already
established, maintaining the public record. Depending upon the activities included in the
state's or tribe's work plan, an EPA regional office may request that a progress report
include:
1. Reporting interim and final progress reports. Reports must prominently
display the following three relevant Essential Elements as reflected in the
current EPA strategic plan: Strategic Plan Goal 3: Cleaning Up
Communities and Advancing Sustainable Development Strategic Plan
Objective 3.1: Promote Sustainable and Livable Communities, and Work
plan Commitments and Timeframes. EPA's strategic plan on the internet:
http ://www. epa.gov/planandbudget/strategicplan.html.
2. Reporting environmental insurance. Recipients with work plans that
include funding for environmental insurance must report the :
• number and description of insurance policies purchased (e.g., type of
coverage provided; dollar limits of coverage; any buffers or
deductibles; category and identity of insured persons; premium; first
dollar or umbrella; site specific or blanket; occurrence or claims
made, etc.);
• number of sites covered by the insurance;
• amount of funds spent on environmental insurance (e.g., amount
dedicated to insurance program, or to insurance premiums); and
• amount of claims paid by insurers to policy holders.
3. Reporting for site-specific assessment or cleanup activities. Recipients
with work plans that include funding for brownfields site assessment or
cleanup must input information required by the OMB-approved Property
Profile Form into the Assessment Cleanup and Redevelopment Exchange
System (ACRES) database for each site assessment and cleanup. In
addition, recipients must report how they provide the affected community
with prior notice and opportunity for meaningful participation as per
CERCLA Section 128(a)(2)(C)(ii) on proposed cleanup plans and site
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activities. For example, EPA strongly encourages states and tribes to seek
public input regarding the priority of sites to be addressed and solicit input
from local communities, especially potential environmental justice
communities, communities with a health risk related to exposure to
hazardous waste or other public health concerns, economically
disadvantaged or remote areas, and communities with limited experience
working with government agencies.
4. Reporting for other site-specific activities. Recipients with work plans that
include funding for other site-specific related activities must include a
description of the site-specific activities and the number of sites at which
the activity was conducted. For example, the:
• number and frequency of oversight audits of licensed site professional
certified cleanups;
• number and frequency of state/tribal oversight audits conducted;
• number of sites where staff conducted audits, provided technical
assistance, or conducted other oversight activities; and
• number of staff conducting oversight audits, providing technical
assistance, or conducting other oversight activities.
5. Reporting required when using funding for an RLF. Recipients with work
plans that include funding for revolving loan fund (RLF) must include the
information required by the terms and conditions for progress reporting
under CERCLA section 104(k)(3) RLF cooperative agreements.
6. Reporting for Non-MOA states and tribes. All recipients without a VRP
MOA must report activities related to establishing or enhancing the four
elements of the state's or tribe's response program. For each element
states/tribes must report how they are maintaining the element or how they
are taking reasonable steps to establish or enhance the element as
negotiated in individual state/tribal work plans. For example, pursuant to
CERCLA section 128(a)(2)(B), reports on the oversight and enforcement
authorities/mechanisms element may include a:
• narrative description and copies of applicable documents developed
or under development to enable the response program to conduct
enforcement and oversight at sites. For example:
o legal authorities and mechanisms (e.g., statutes, regulations,
orders, agreements); and
o policies and procedures to implement legal authorities; and
other mechanisms;
• description of the resources and staff allocated/to be allocated to the
response program to conduct oversight and enforcement at sites as a
result of the cooperative agreement;
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• narrative description of how these authorities or other mechanisms,
and resources, are adequate to ensure that:
o a response action will protect human health and the
environment; and be conducted in accordance with applicable
federal and state law; and if the person conducting the response
action fails to complete the necessary response activities,
including operation and maintenance or long-term monitoring
activities, the necessary response activities are completed; and
• narrative description and copy of appropriate documents
demonstrating the exercise of oversight and enforcement authorities
by the response program at a brownfields site.
The regional offices may also request additional information be added to the progress
reports, as appropriate, to properly document activities described by the cooperative
agreement work plan.
EPA regions may allow states or tribes to provide performance data in appropriate
electronic format.
The regional offices will forward progress reports to EPA Headquarters, if requested.
This information may be used to develop national reports on the outcomes of CERCLA
section 128(a) funding to states and tribes.
B. Reporting of program activity levels
States and tribes must report, by January 31, 2013, a summary of the previous federal
fiscal year's work (October 1, 2011 through September 30, 2012). The following
information must be submitted to your regional project officer:
• environmental programs where CERCLA 128(a) funds are used to support
capacity building (general program support, non-site-specific work). Indicate as
appropriate from the following:
Brownfields
Underground Storage Tanks/Leaking Underground Storage Tanks
Federal Facilities
_Solid Waste
Superfund
Hazardous Waste Facilities
VCP (Voluntary Cleanup Program, Independent Cleanup Program, etc.)
_Other ;
• number of properties (or sites) enrolled in a response program during FY12;
• number of properties (or sites) where documentation indicates that cleanup work is
complete and all required institutional controls (IC's) are in place, or not required;
• total number of acres associated with properties (or sites) in the previous bullet;
and
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• number of properties where assistance was provided, but the property was not
enrolled in the response program (OPTIONAL).
EPA may require states/tribes to report specific performance measures related to the four
elements which can be aggregated for national reporting to Congress.
For example:
1. timely survey and inventory - estimated number of brownfields sites in the
state or on tribal land;
2. oversight and enforcement authorities/mechanisms - number of active
cleanups and percentage that received oversight; percentage of active
cleanups not in compliance with the cleanup workplan and that received
communications from recipient regarding non-compliance;
3. public participation - percentage of sites in the response program where
public meetings/notices were conducted regarding the cleanup plan and/or
other site activities; number of requests and responses to site assessment
requests; and
4. cleanup approval/certification mechanisms - total number of "no further
action" letters or total number of certificate of completions.
[NOTE: This reporting requirement may include activities not funded with
CERCLA Section 128(a) funding, because this information may be used by EPA
to evaluate whether recipients have met or are taking reasonable steps to meet the
four elements of a response program pursuant to CERCLA Section 128(a)(2).]
C. Reporting of public record
All recipients must report, as specified in the terms and conditions of their cooperative
agreement, information related to establishing, or if already established, maintaining the
public record, described above. States and tribes can refer to an already existing public
record, e.g., website or other public database to meet the public record requirement.
Recipients' reporting may only be required to demonstrate that the public record; a)
exists and is up-to-date; and b) is adequate. A public record may include the following
information:
A list of sites at which response actions have been completed including:
• date the response action was completed;
• site name;
• name of owner at time of cleanup, if known;
• location of the site (street address, and latitude and longitude);
• whether an institutional control is in place;
• type of institutional control in place (e.g., deed restriction, zoning
restriction, local ordinance, state registries of contaminated property, deed
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notices, advisories, etc.);
• nature of the contamination at the site (e.g., hazardous substances,
contaminants or pollutants, petroleum contamination, etc.); and
• size of the site in acres.
A list of sites planned to be addressed by the state or tribal response program including:
• site name and the name of owner at time of cleanup, if known;
• location of the site (street address, and latitude and longitude);
• to the extent known, whether an institutional control is in place;
• type of the institutional control in place (e.g., deed restriction, zoning
restriction, local ordinance, state registries of contaminated property, deed
notices, advisories, etc.);
• to the extent known, the nature of the contamination at the site (e.g.,
hazardous substances, contaminants, or pollutants, petroleum
contamination, etc.); and
• size of the site in acres.
D. Award administration information
1. Subaward and executive compensation reporting
Applicants must ensure that they have the necessary processes and systems in
place to comply with the subaward and executive total compensation reporting
requirements established under OMB guidance at 2 CFR Part 170, unless they
qualify for an exception from the requirements, should they be selected for
funding.
2. Central Contractor Registration (CCR)/System for Award Management (SAM) and
Data Universal Numbering System (DUNS) Requirements
Unless exempt from these requirements under OMB guidance at 2 CFR Part 25
(e.g., individuals), applicants must:
a) register in the CCR/SAM prior to submitting an application or
proposal under this announcement. CCR/SAM information can be
found at https://www.sam.gov/portal/public/SAM/;
b) maintain an active CCR/SAM registration with current information at
all times during which it has an active Federal award or an application
or proposal under consideration by an agency, and
c) provide its DUNS number in each application or proposal it submits
to the agency. Applicants can receive a DUNS number, at no cost, by
visiting the D&B website at:
https://iupdate.dnb.com/iUpdate/companylookup.htm.
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Failure to comply with these requirements will affect the applicant's ability to
receive funding. Please note that the CCR has been replaced by the System for
Award Management (SAM). To learn more about SAM, go to SAM.gov or
https://www.sam.gov/portal/public/SAM/.
3. Use of funds
An applicant that receives an award under this announcement is expected to
manage assistance agreement funds efficiently and effectively and make sufficient
progress towards completing the project activities described in the work-plan in a
timely manner. The assistance agreement will include terms/conditions
implementing this requirement.
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REGIONAL STATE AND TRIBAL BROWNFIELDS CONTACTS
REGION
1
CT, ME, MA, NH,
Rl, VT
2
NJ, NY, PR, VI
3
DE, DC, MD, PA,
VA, WV
4
AL, FL, GA, KY,
MS, NC, SC, TN
5
IL, IN, Ml, MN,
OH,WI
6
AR, LA, NM, OK,
TX
7
IA, KS, MO, NE
8
CO, MT, ND, SD,
UT, WY
9
AZ, CA, HI, NV,
AS, GU
10
AK, ID, OR, WA
STATE
James Byrne
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 02 109-39 12
Phone (617) 918-1389 Fax (617) 918-1291
Alison Devine
290 Broadway, 18th Floor
New York, NY 10007-1 866
Phone (212) 637-4158 Fax (212) 637-3083
Janice Bartel
1650 Arch Street (3HS51)
Philadelphia, PA 19103
Phone (215) 814-5394 Fax (215) 814-3015
Nicole Comick-Bates
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta, GA 30303-8909
Phone (404) 562-9966 Fax (404) 562-8788
Jan Pels
77 West Jackson Boulevard (SE-7J)
Chicago, IL 60604-3507
Phone (312) 886-3009 Fax (312) 692-2161
Amber Perry
1445 Ross Avenue, Suite 1200 (6SF)
Dallas, TX 75202-2733
Phone (214) 665-3172 Fax (214) 665-6660
Susan Klein
11201 Renner Boulevard (SUPRSTAR)
LenexaKS 66219
Phone (913) 551-7786 Fax (913) 551-9786
Christina Wilson
1595 Wynkoop Street (EPR-B)
Denver, CO 80202-1 129
Phone (303) 312-6706 Fax (303) 312-6065
Eugenia Chow
75 Hawthorne St. (SFD-6-1)
San Francisco, CA 94105
Phone (415) 972-3160 Fax (415) 947-3520
Mary K. Goolie
222 West 7th Avenue #1 9 (AOO)
Anchorage, AK 99513 Phone ((907) 271-3414
Fax (907)271-3424
TRIBAL
AmyJean McKeown
5 Post Office Square, Suite 100 (OSRR07-2)
Boston, MA 021 09-391 2
Phone (617) 918-1248 Fax (617) 918-1291
Alison Devine
290 Broadway, 18th Floor
New York, NY 10007-1 866
Phone (212) 637-4158 Fax (212) 637-4158
Cindy J. Nolan
61 Forsyth Street, S.W, 10TH FL (9T25)
Atlanta, GA 30303-8909
Phone (404) 562-8425 Fax (404) 562-8788
Jane Neumann
77 West Jackson Boulevard (SE-7J)
Chicago, IL 60604-3507
Phone (312) 353-0123 Fax (312) 697-2649
Amber Perry
1445 Ross Avenue, Suite 1200 (6SF)
Dallas, TX 75202-2733
Phone (214) 665-3172 Fax (214) 665-6660
Susan Klein
11201 Renner Boulevard (SUPRSTAR)
LenexaKS 66219
Phone (913) 551-7786 Fax (913) 551-9798
Barbara Benoy
1595 Wynkoop Street (8EPR-SA)
Denver, CO 80202-1 129
Phone (303) 312-6760 Fax (303) 312-6962
Glenn Kistner
75 Hawthorne St. (SFD-6-1)
San Francisco, CA94105
Phone (415) 972-3004 Fax (415) 947-3520
Mary K. Goolie
222 West 7th Avenue #1 9 (AOO)
Anchorage, AK 99513 Phone ((907) 271-3414 Fax (907)
271-3424
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